Public Bill Committee

[Mr Peter Bone in the Chair]

Examination of Witnesses

Councillor David Simmonds, Paul Greenhalgh and Henry St Clair Miller gave evidence.

Q 241241

Peter Bone: We will now hear oral evidence from the Local Government Association, the Association of Directors of Children’s Services and the No Recourse to Public Funds Network. We have until 2.45 for this session. Welcome, witnesses. Please introduce yourselves for the record.

Councillor Simmonds:  My name is David Simmonds. I am deputy leader of the London borough of Hillingdon, which includes Heathrow airport for those familiar with the immigration issues arising from it. I am the chairman of the asylum and refugee task group at the Local Government Association.

Paul Greenhalgh:  I am Paul Greenhalgh, executive director for the London borough of Croydon’s people department. I am also the chair of the asylum taskforce of the Association of Directors of Children’s Services

Henry St Clair Miller:  I am Henry St Clair Miller, manager of the No Recourse to Public Funds Network.

Peter Bone: Before we start, do not be surprised if the Minister asks questions, because he can at this session. It is helpful if you speak into the microphone, because the acoustics are not always so good in this room.
Mr Starmer, do you want to start?

Q 242

Keir Starmer: Thank you, witnesses, for coming in and helping us this afternoon. I want to start with the provisions in the Bill to remove support from those who have exhausted their asylum process. Until now there has been an ability to remove the support, but it has been rarely used. There was a pilot 10 years or so ago and it has been used rarely since then. Can you give the Committee your view on why the pilot was unsuccessful? I think it involved about 116 families and the net result was that very few, if any, of those families went voluntarily, which was the intended purpose. There was a possibly unintended consequence, which was that very many more went off the radar, and all sorts of other consequences followed. So can you give us your own view as to why you think that pilot was so unsuccessful?

Councillor Simmonds:  I am happy to lead on this. I think others may have technical comments about aspects of it. It is pretty clear that quite a tangled web of legislation needs to be gone through before support can be removed. Once it is removed in the formal sense, there are a lot of organisations that exist to provide support to families for the time in which they remain in the UK. There will pretty much always be, in my experience, other legal avenues that people can explore should one particular avenue be closed down.
The key concern that local government has is that the evidence from those pilots was extremely clear in that the withdrawal of support does not result in a significant incentive for people to leave the UK. The conclusion that follows is that we should not expect that withdrawal of support in future would result in any significant increase in the numbers departing. We would expect that the cost burdens, whether they fall on local authorities or on civil and voluntary groups in the wider sense, would remain.

Paul Greenhalgh:  Barnardo’s did an evaluation of the pilot programme. Not only did people not leave but 35 families out of the 116 families went missing; in a sense, they decided to go underground. Some of those families abandoned their children to the care of local authorities, and that pilot led us to question the assumptions about behavioural change that underpin some aspects of the Bill.

Q 243

Keir Starmer: May I clarify one thing I think you just said? Did you say that a number of parents abandoned their children to the care of local authorities, so their children went into care?

Paul Greenhalgh:  They abandoned their children, so those children were taken into care by the relevant local authorities. I am not sure how many families that applied to, but it applied to some of those 35.

Henry St Clair Miller:  The only thing I would add is that people who were around at the time felt that there was a lack of Home Office engagement with the families in that process up to the point when support was withdrawn. Perhaps engagement was not of the nature necessary for families to know their options and understand the consequences of not engaging with Home Office requirements. Should the Bill go ahead, one of the unknowns is exactly what Home Office engagement with the families would be. We might see again the likelihood of asylum support being withdrawn at the end of the process. We want to know exactly what that engagement will be to minimise the risk described by my colleagues.

Q 244

Keir Starmer: Back in 2008, Mr Duncan Smith—obviously he is now in a different role—described it as a “failed policy”. That may explain why it has not been used since the pilot. Do you disagree with that conclusion?

Councillor Simmonds:  It manifestly did not work at the time. Therefore, if we were to revisit that as an approach, we would need to think very carefully about how it could be made effective. That would require a different approach on many, many levels.

Paul Greenhalgh:  I agree with that comment. We have been working with the Home Office to explore areas in which we wonder whether further safeguards might make such an approach more effective.

Q 245

Sarah Champion: On that point, Mr Greenhalgh used the phrase behavioural change. I think we all understand what the Government are trying to achieve, but you do not believe that the Bill does that. What should be in the Bill to get the behavioural change that the Government are trying to achieve?

Paul Greenhalgh:  One of the difficulties with the Bill as currently framed is that there will be a number of what we would perceive as unintended consequences. They are twofold, mainly around our duties to provide support and care in certain circumstances arising from the Children Act 1989 and the Care Act 2014. Mainly, section 17 of the Children Act is something that would come into play in these sorts of cases.
At the moment, 80% of those cases are funded by no recourse to public funds arrangements as a result of a Children Act assessment. As a result of the current drafting of the Bill, a lot of families who would receive no further support as a result of their asylum status being confirmed would come to the local authority if they were about to become destitute. The local authority would be bound to make a human rights assessment and, if there are children involved, a children in need assessment. Those assessments take some time, so if a family are at immediate risk of destitution, we would have to put immediate measures in place.
So the first of our significant concerns is that this could result in a huge increase in demand on local authorities, which would in effect be a cost shunt from the Home Office to local authorities in an unfunded way. The other consequence is the danger that people will not come to local authorities but will go underground, and therefore be more at risk of exploitation and less able to be supported by the authorities.
If those are our concerns, we think some measures need to be put in place to provide appropriate safeguards. First, there should be a clarification of assessment processes, to reduce the burden falling on local authorities and the difficulty for families of having to go through what at the moment are two assessment processes. If the assessment process could be streamlined, that would be one improvement to the Bill.
The other significant issue is funding and the extent to which, however we frame the Bill, it will result in more cost to local authorities to support people on an interim basis. If there is recognition that those costs are a new burden, and if there is engagement between local authorities and the Home Office to work together on a practical level to support those families and help them to engage, we could see some of the intention of the Bill working more effectively.

Q 246

James Brokenshire: Perhaps I could just pick up on that last point and ask the witnesses about that engagement. Are you engaging with the Home Office and working through some of those details that you suggest may be needed?

Paul Greenhalgh:  We are. We had meetings with Home Office officials during the consultation period. We put in a joint response, and 48 local authorities sent in individual responses. The feedback from Home Office officials is that there was a consistent response from local authorities. We made it clear that we were very happy to continue to work with Home Office officials, and we have been doing that. We have had three technical meetings so far, and we are trying to work through how we can try to address together those issues that I have raised.

Councillor Simmonds:  I thank the Minister for making himself available for those discussions. The one challenge that we have found at a political level is that there are sometimes differences of opinion between officials in different Government Departments. For example, on Children Act duties, traditionally we have had feedback from the Home Office that broadly says, “We are seeing people through our role in asylum and immigration, which we are here to manage.” Those in the Department for Education would say, “We’re not interested in that. We see them as vulnerable children, and therefore the duties are absolutely and unambiguously clear, and at the highest possible level.” The more consistency that we can get on some of those challenges, the better.

Q 247

James Brokenshire: No doubt we will come on to the detail of some of the cross-governmental work that is taking place.
In your responses to the 2005 pilot, you expressed your thoughts on what occurred 10 years ago. Obviously, the world has moved on; other provisions exist in respect of identifying people, and encouraging or supporting them to depart. Also, the proposals in the Bill are different on the balance of engagement, with the onus being put on the family to show that there is a genuine obstacle to their departure, rather than the family not co-operating and the Home Office evidencing that. So a different approach is being taken. Do you see some of those differences as being relevant in the context of the effect and workability of the new proposals?

Henry St Clair Miller:  I guess that sometimes that is where the local authority position arises. We are not within the Home Office; we are not Home Office enforcement. So, sometimes it is difficult for us to comment on the barriers, in terms of leveraging return or indeed enforcing return.
I guess that local authorities working in this area have had a kind of old-fashioned approach to it—that we should end up with actual outcomes when we look at immigration enforcement. The outcome might be a grant of status, if that is appropriate, or it might be a removal.
It is often said that things such as a lack of documentation and a lack of engagement from the families are among the key reasons why removal rates are very low. Yet from the outside—from a local authority perspective—we have seen other reports about how things are organised for immigration processes in some of the caseworking teams, the barriers to processing cases, the delays in deciding applications and possible challenges to making sure that cases that have recently been refused are tasked to removal teams. I guess that we have always thought that there is scope to work with the existing framework, whether that is a family returns policy or an enforcement policy.
Notwithstanding all that, we can see why Home Office officials want to leverage compliance to some degree. We understand why it is thought that the tools proposed in the Immigration Bill will help to do that. From a local authority perspective, we are trying to work in that context, particularly if the Immigration Bill becomes law, while ensuring that the remaining safeguards—we provide a safety net for the most vulnerable—are retained where necessary. Of course, the unknown—the risk—is how many people do not go and what the burden is on the local authority. Indeed, that risk is not only about numbers and referrals but about cost, because we carry the cost burden of financial support, which goes on at the moment for more than two years on average.
Immigration, as you know, is a complex area of work. Lots of different approaches work, and we have been keen to work out with Home Office officials which are the best tools to do this in the work that we have done.

Q 248

James Brokenshire: Obviously, we have talked about the new burdens assessment. Do any of the other witnesses wish to come in?

Paul Greenhalgh:  More broadly, we are keen to build partnerships with the Home Office and other relevant Government Departments. We see room for improvement in the way we engage together on identification and compliance in voluntary returns, and potentially on family engagement and supporting family returns. In the context of a new piece of legislation, it is important that we make that surrounding partnership work more effective.

Councillor Simmonds:  I have little to add to that. The bottom line, from a local authority perspective, is that if people are not entitled to support and should not be in the country, they need to leave. The challenge is that, although a lot of the debate—understandably, in the context of the Bill—is about the rights or otherwise of individuals, the balance is that local authorities have a set of duties. For the most part, they are general duties. We are blind to a person’s immigration status. A child is a child, and we have a responsibility under the Children Act 1989 to intervene where appropriate. Any intention to remove entitlements or rights from certain individuals needs to be balanced by a recognition that that does not remove the local authority’s duty in those circumstances to provide support.

Peter Bone: A number of Members want to come in, but I interrupted Mr Starmer.

Q 249

Keir Starmer: May I go back to a couple of answers that were given? First, on streamlining the assessment process, I think that you mentioned two assessments. Is the first the assessment for asylum support in the first place and the second the assessment for the local authority, or are there two local authority assessments?

Paul Greenhalgh:  There are two local authority assessments. When people come to local authorities for support, they often come because their situation has worsened and they need support to avoid destitution. Often, it is about accommodation and subsistence support. The local authority, under section 17 of the Children Act, has wider obligations to consider the welfare needs of the child in whatever circumstances. When people have gone through an asylum process, we need to conduct a human rights assessment to determine whether ending support would be a breach of their human rights, before we complete the children in need assessment. That is a burdensome process for local authorities and for families.

Q 250

Keir Starmer: I just want to pick up a second point. Evidence has been given that the objective is that people leave, and therefore there is no burden on anyone to provide any support, but the evidence from the 2005 pilot seems to show pretty strongly that if that is the objective, this is not the way to achieve it. The likelihood is, therefore, that local authorities will be picking up the burden of supporting families, particularly those with children—children are children, in this.
You talked about a cost shift. What is the cost increase when asylum support is swapped for putting a child or family who are not going to go voluntarily—a child may not have any choice at all—on local authority support? It seems to me that under these provisions the cost will go up, because you take someone from one regime to a regime for which they have to go through two assessments, which someone has to carry out, and be put on to temporary support and further support. They could have become more destitute and so need more support. Am I right in thinking that this is not just a cost shunt—you are not simply moving cost x from the Home Office to the local authority but shifting and increasing it, so the cost to the taxpayer goes up?

Paul Greenhalgh:  Potentially, yes, under how the Bill is currently drafted.

Q 251

Craig Whittaker: I want to drill down on the shift of the cost burden from the Home Office to local authorities. We already know that schedule 3 to the Nationality, Immigration and Asylum Act 2002 broadly limits access to local authority social care for families anyway. Is there not a mechanism between local authorities and the Home Office that is triggered when a family present themselves and it becomes clear that they are in this country unlawfully, so that they get deported and the local authority does not have to shoulder the burden of the cost?

Henry St Clair Miller:  I think you are referring to the exclusions from social services support under schedule 3 to the Nationality, Immigration and Asylum Act 2002, whereby if a local authority is working with someone in an excluded group—a failed asylum seeker would likely fall within the excluded groups—the authority is instructed to provide support only if it is necessary for the purpose of avoiding a breach of human rights. It is that exception to the exclusion that gives rise to the human rights assessment, which can be quite time consuming for a local authority.
When you work in this area you have to be quite specific about each client group. It is true that an asylum seeker who has already put in an application has been through the courts, and the courts have decided that there would be no human rights breach in returning the family to the parents’ country of origin. The best interests of the child will have been looked at within that, and the courts will have decided that. It should then be possible for the local authority to follow the same line within the human rights assessment and opt to say that no assistance is required other than a return to the country of origin through assisted voluntary return.
It is a little bit different in our experience, because a lot of the applicants go on to put in further representations under the UK’s immigration rules. That is often on the basis of article 8 human rights and on the basis of there being children. Once the application goes in, there is a legal barrier to that family leaving, and it is impossible to enact schedule 3 to withhold support if the family is destitute.

Q 252

Craig Whittaker: I am a little confused. Are these families not here unlawfully—has it not been deemed through the court process that they are failed asylum seekers, or whatever category they are in, and so they are staying in the country unlawfully anyway? Are you saying that local authorities traditionally ignore that process and go beyond that? Why would you continue to offer support?

Henry St Clair Miller:  At present failed asylum-seeking families are not a group within our cohort. We are usually working with visa overstayers who have been in the UK for many years undetected—possibly with safeguarding concerns about the welfare of children after long periods of forced dependency for the family. In our experience, these people are usually at the beginning of the process of applying for leave once we have come into contact with them. That is quite different from people who have been in the asylum process and all appeal rights have been exhausted. At the moment, we do not see so many of those cases.
So I assume—not I assume—it is the case that if you were looking at schedule 3 and Humans Rights Act assessments, you would have regard primarily for the decisions of the court in that equation.

Q 253

Craig Whittaker: So the cases that you are primarily dealing with do not apply to the Bill, because the Bill talks about removing support for those who have gone through the process and are deemed to be unlawful immigrants.

Henry St Clair Miller:  It is both. Sorry—I will try again and then I will give up. It is both, because you are also looking at measures to tackle illegal migration in the UK such as landlord checking and the rest, which might give rise to more of those.

Paul Greenhalgh:  Our concern is about families who have been given that status in terms of how the Bill is currently drafted. The onus will be on the families to leave rather than there being an enforcement to their departure. While they are still in this country, local authorities still have legal duties to them under the legislation that we have previously cited.

Councillor Simmonds:  It is probably worth giving you some figures. When we look at the numbers for local authority responsibilities in providing support to irregular migrants, around 80% of those who are supported are those under the section 17 Children Act responsibilities. The remaining group tend to be with care needs under the Mental Health Act and the Care Act, so the vast majority will be entitled to support through their status as families with children, and there will always be further legal avenues by which they can regain that entitlement should one avenue be closed off.

Q 254

Sarah Champion: I have just a small question. Currently, when someone has failed their last appeal, what is the average time before they actually get deported? I just want an idea of the timescale in which they would be destitute.

Henry St Clair Miller:  I have not learnt of that particular statistic, so I do not have an answer.

Q 255

Sarah Champion: Ball park. Is it hours, weeks, months?

Henry St Clair Miller:  It is tentatively months. The main thing, whether it is data from our NRPF Connect database or independent research, is that the time on support for an individual case is currently well above two years. That is a statistical fact. I cannot determine the exact timescales from an actual refusal or how many claims are made within that period. I guess there is a concern for local authorities that, if we have to engage these safety net responsibilities, there should not be an assumption that it will be just short term. Obviously, we are very keen to work with the Home Office to try and reduce the time. I think we are making progress and I think the Home Office has been good in respect to hearing about our difficulties, so this may change, but I can only give the stats that we have currently.

Q 256

Sarah Champion: So, to clarify, if this legislation is enacted, your assumption is that a family would be without any support for a couple of months.

Henry St Clair Miller:  It is hard to define this. I am saying that, when support is engaged under the safety net, historically it has not been something that is over and done with in a couple of months. Historically, it has taken longer to resolve the issues.

Sarah Champion: I am sorry. We are not trying to trip you up.

Q 257

Chloe Smith: Does the Committee have any reason not to accept the figures in the Home Office’s August consultation document? I am referring to the public consultation on reforming support for failed asylum seekers and other illegal migrants. I am looking at the figures given for the scale of the situation: an estimated 15,000 refused asylum seekers with an estimated cost of £73 million. Do you accept those figures or have any concerns about them?

Paul Greenhalgh:  We broadly accept those figures, yes.

Q 258

Chloe Smith: That is very helpful. Thank you. I will preface my next question with a sentence from the UNHCR website:
“If the asylum system is both fast and fair, then people who know they are not refugees have little incentive to make a claim in the first place, thereby benefitting both the host country and the refugees for whom the system is intended.”
If we are looking at 15,000 refused asylum seekers, with an associated cost that we might all agree on, does the panel think that we ought to do everything we can to reduce that number and those costs, to be able to fulfil the obligations to refugees that we all want to fulfil—the Prime Minister has set out that we want to—towards refugees coming in from other parts of the world at present, who of course have recourse to public funds, because they are under the temporary relocation scheme?

Councillor Simmonds:  Yes, entirely. If we look at the Syrian programme, which is under way at the moment, people coming with humanitarian status will have rights, and the expectation is that they will be able to access fully UK public services but also will be expected to work.
Picking up on the point about the numbers, there is a survey that is probably the most up-to-date one, because I do not think we have any national data on the number of people who are here irregularly as migrants under one status or another. The Greater London Authority commissioned a study. It is from 2007 and it gives the most recent national figure. It estimated that the number of irregular migrants—this is people with a number of different statuses—was between 417,000 and 863,000.
In terms of the numbers at present, we know the organisations that participate in Henry’s body. There was a survey recently, in January this year, and it put the number at around 2,154 households, supported by the 34 authorities that provided detailed information, at a cost of £613,872 per week. Clearly, that is a significant cost to UK taxpayers for people who will fall into a number of different groups; not just failed asylum seekers but visa overstayers and various other categories.

Q 259

Chloe Smith: Would you just kindly repeat that number and say what the unit is?

Councillor Simmonds:  Yes. So, we were talking there about 34 authorities that are supporting 2,154 households who are irregular migrants, and the cost—the quite detailed costing of that—is £613,872 per week.

Paul Greenhalgh:  Which aggregates to £32 million for those 34 authorities.

Henry St Clair Miller:  And includes 3,825 dependants.

Peter Bone: I do not know whether any of the witnesses has those figures in a table, because it is very difficult to take them all down. If you could write to us, I would like to circulate them to the Committee.

Q 260

Chloe Smith: Would the rest of the panel like to make any comment on this notion of having to reduce our undesired costs to be able to do more for those who most need it?

Paul Greenhalgh:  Absolutely, and we would want to do that to ensure that the relevant safeguards are in place, particularly for children in families.

Henry St Clair Miller:  I agree with that, yes.

Q 261

Paul Blomfield: I would just like to follow up a little on some of the witnesses’ answers to the Minister’s questions about the interaction that you have had with the Home Office. Mr Greenhalgh, you said in relation to the 2005 pilot by the then Labour Government that it not only failed but was counter- productive, in that it drove many people underground and made compliance more difficult. From the discussions that you have had with the Home Office, do you know what different measures the Home Office is putting in place that will mean this time it is different, and are you confident that that is the case?

Paul Greenhalgh:  I spoke about the complexity of the current assessment system when families need to come to local authorities for support. So, as the Bill is currently drafted, we believe that the number of families that would inevitably come to local authorities for support would increase significantly.
One of the questions that we are exploring with the Home Office is whether it is appropriate to leave the legislation around the Children Act as it currently stands, which we then have to apply to those families, or whether we take migrant families without status out of the Children Act and provide support for them through schedule 3 of the Nationality, Immigration and Asylum Act 2002. There are some advantages to that, in terms of the potential for establishing a new simplified assessment system, for providing support in a way that takes more account of the family’s immigration status and for being more explicit about the fact that it would result in a clear new burden on the local authority, which would need to be funded. That is one mechanism that we are in discussion about.

Q 262

Paul Blomfield: I will come to funding in a moment, if I may. I was particularly interested in the issue of compliance. You pointed out that the previous pilot had been counterproductive. What indications have you been given in your discussions with the Home Office that you think, in terms of the policy objective, that it will be different this time?

Paul Greenhalgh:  We still have concerns about the assumptions about behavioural change and the extent to which families will take responsibility for removing themselves from the country. That is why, in addition to the technical discussions about where changes might be made to the Bill or not, we think that that needs to go alongside closer partnership working between local authorities and the Home Office, to ensure that families who are no longer getting support and who need to think about removing themselves from the country have a more joined-up approach from the local authority and the Home Office working together. We think that that would make it more effective, more user-friendly and clearer for people and more nationally consistent, and so would present the potential for a series of arrangements that could be more effective than the Bill as currently drafted.

Q 263

Paul Blomfield: You are describing your aspirations for how it might be more effective, but I am thinking of where you have got to in your discussions with the Home Office. You have said that there is a constructive engagement. As we stand at the moment, in terms of what has been agreed, would it be unreasonable to say—I do not want to put words in your mouth—that there is nothing that gives you confidence that this would be any different from the pilot in 2005?

Paul Greenhalgh:  No, I would not say that, actually. I think that there are some interesting ideas on the table. I think that we are seeking further assurance around the extent to which those new possible technical arrangements would provide the assurances that we think need to be in place, in terms of both safeguarding children and recognising the cost to local authorities.

Q 264

Paul Blomfield: On the cost, it is about that assurance. Representing a large northern city, I am conscious that local government has taken a disproportionate hit, particularly in areas where we have a concentration of asylum seekers. I am keen to know whether you have assurances from the Home Office that all the additional costs will be met. Yes or no will do.

Councillor Simmonds:  The straight answer is no, partly because the Bill is still under debate. As a politician, I am really clear that there needs to be a decision one way or the other. Either we are willing to identify people to remove them from the country, or we need to make provision for their support while they are here. What we cannot do is say that they have no recourse to public funds. That just means that the UK taxpayer picks up the cost through a different route, which is local authority support. That is the thing that needs to change.

Q 265

Kelly Tolhurst: In my constituency and across my county of Kent this summer, we have seen very high numbers of unaccompanied minors. I understand that it has been an issue not just for Kent but for some of the surrounding local authorities. How do you feel that the Home Office has engaged with you with regard to dealing with that particular problem over the summer, and how do you see things moving forward?

Councillor Simmonds:  The Local Government Association has put forward a proposal, supported by colleagues in the Association of Directors of Children’s Services and the Society of Local Authority Chief Executives, for a national scheme to address the concerns in Kent. The existing legal framework allows other local authorities to assist voluntarily, but we know if somebody is an unaccompanied asylum-seeking child and to take a very simple example it is likely when they become a care leaver that they will go to university, that means, following the Barking and Dagenham judgment, that the local authority where they are will pay the full foreign student fees for them during their time at university, which is a massive and entirely underfunded cost. It is clear that other local authorities have said, “We are perfectly willing to assist, but we need some assurance that there will be funding available.” Some limited amounts have been put forward by the Home Office to help, but it is clear that we need a national scheme.
My view, and the view of others who have been involved with this issue for many years, is that we would achieve much greater economies of scale by doing that rather than leaving authorities like Kent in a situation where, essentially, they have to pay whatever providers wish to charge them, because they have no option. Other areas that perhaps could assist are not going to be willing to do so, because they are being asked to do so on an unfunded basis.

Q 266

Kelly Tolhurst: Do you think that the Home Office has been good at engaging over this period and is committed to delivering this?

Councillor Simmonds:  I have met the Minister to talk about this. I know Edward Timpson, the other Minister at the Department for Education who is responsible there, the Local Government Association and others have been involved in discussions on this for some time. We have put a proposal out. Essentially, the decision that needs to be made is whether that is something that is going to be locally led, or, given the asylum issues involved, whether the Home Office would feel more comfortable with it being led nationally, such as by the National Asylum Support Service. Pending a decision on that, we are in a position to press the button.

Q 267

Kelly Tolhurst: Do you feel, at the moment, particularly in the south-east—and perhaps if you have knowledge of the whole of the country—that the pressure we are currently seeing with unaccompanied minors is greater than the perceived pressure that may come due to some of the measures in the Bill?

Paul Greenhalgh:  My sense of that is no. Kent is currently the authority with the largest number of unaccompanied asylum-seeking children. It currently has 800. Croydon is the—[Interruption.] Okay, I think it is 800, but David has a different view. It is somewhere between 800 and 1,200. Croydon is the next biggest authority in terms of the number of unaccompanied asylum seekers. We have 370. I think that those figures are small compared with the impact that the Bill would have with regard to removing support from families with that status.

Councillor Simmonds:  It is important to be clear, though, that because the Children Act 1989 makes the local authority at the port of authority the responsible body, it falls disproportionately on a small number of places. If you are a port, or indeed, a local authority such as Leicestershire, with motorway services where lorries travelling from ports tend to deposit people, you may end up with a significant population, and their rights derive from the fact that they are unaccompanied children, so their asylum status is not strictly relevant to that. They gain those rights by virtue of the fact that they are unaccompanied, at which point the Children Act and Children (Leaving Care) Act 2000 kick in.

Q 268

Simon Hoare: Is the natural corollary of quite a lot of the discussion about the pressure on local government finance to see some change in the Children Act?

Councillor Simmonds:  Paul will have a professional view about that. Clearly, what is not sustainable is to say that people have a portfolio of rights, but there is no funding available to fulfil any of those obligations. So it would be possible—I think the provisions in the Bill could conceivably do it—to say that certain individuals are removed from any consideration under the Children Act. The issue that we would have, of course, is that other avenues will then generally be pursued. One of the common problems for local authorities—I speak from a lot of personal experience—is that as one avenue is closed, another one opens up, so we would need to make sure that any provisions that were envisaged of that nature were extremely comprehensive. It would be a challenge for parliamentarians collectively to say that we are going to walk through the Lobby and say, “We are determined to remove a group of children who are in the UK from being considered as children and view them simply as illegal immigrants, and therefore, not entitled to support.” I suspect that, on a cross-party basis, Parliament would have a challenge in getting that through and finding that it could be supported easily.

Q 269

Simon Hoare: We heard in earlier evidence that, when the final refusal comes, virtually everyone, it has been suggested, suddenly goes underground, beneath the radar. Clearly, that is not the case because a lot of people turn up at the doors of town halls across the country. What percentage of those who are refused do you reckon the Government deal with?

Councillor Simmonds:  Almost all, but in various different categories. In the last year for which we have figures, about 12,500 people were removed by the Home Office and processes of immigration control. The rest will, under one category or another, by and large, be entitled to some form of support. It is quite common. There is a case that my authority is involved in: a young man applies for asylum, is refused, appeals, is refused, is taken to the removal centre and then says, “Actually, I’m a child. I’m not an adult. According to the passport I presented when I applied for asylum, I am a child.” He has now been released, via the Home Office, into the care of my local authority.

Peter Bone: Order. I am so sorry to interrupt a witness but that brings us to the end of the time allocated for the Committee to ask questions. I apologise to the hon. Members who were not able to get in. I thank the excellent witnesses. We could have gone on for longer but we were beaten by the clock.

Examination of Witnesses

Peter Grady, Karl Pike and Andrew Hewett gave evidence.

Q 270

Peter Bone: We will now hear evidence from the Office of the United Nations High Commissioner for Refugees and the British Red Cross. I am afraid that for this session we only have until 3.15 pm. Will the witnesses introduce themselves for the record?

Peter Grady:  I am Peter Grady, legal officer at UNCHR.

Karl Pike:  I am Karl Pike, the refugees and asylum policy and advocacy manager at the British Red Cross.

Andrew Hewett:  I am Andy Hewett, the refugee development manager at the British Red Cross.

Q 271

Sarah Champion: I have three questions. What types of non-asylum cases would be affected by the repeal of section 4(1) of the Immigration and Asylum Act 1999 and can you quantify the number of cases potentially affected?

Peter Bone: No conferring.

Andrew Hewett:  I do not have the exact figures but our understanding is that the majority of people on section 4 are asylum cases. We could come back to you with some figures and an update on that if that would be helpful.

Sarah Champion: That would be very helpful.

Peter Grady:  I do not have figures for you but it is our understanding that stateless persons could also be affected by the section 4(1) revisions.

Q 272

Sarah Champion: What could the consequences be?

Peter Grady:  For stateless persons, if they are denied support?

Sarah Champion: Yes.

Peter Grady:  They could be driven to destitution. There is that risk, just as there is for others. One of the concerns we outlined in our briefing is that there appear to be no replacement support provisions for stateless persons under section 95A, for example. There is a concern that if section 4 is withdrawn, there would not be a replacement form of support or a dedicated support that could benefit stateless persons in the UK.

Q 273

Sarah Champion: So there would be no other avenues for them?

Peter Grady:  There might be other forms of support, as we heard recently, through local authorities in their obligations to individuals, including on human rights grounds, but not through section 4.

Q 274

Sarah Champion: What obstacles to leaving the UK do refused asylum seekers and other irregular migrants face? Which of those should justify eligibility for the proposed section 95A support?

Andrew Hewett:  We see examples every day. The British Red Cross supports over 7,000 destitute people a year, some of whom will be able to apply for section 4 support. Some of them will then experience real practical barriers to leaving the UK. I have got some examples. One real, very recent example: a Palestinian male claimed asylum in 2004. He became appeal rights-exhausted the following year, 2005. He applied for assisted voluntary return through the voluntary return scheme; he applied for section 4 support. He was not able to progress his application for voluntary return because there is no direct route into Palestine. Therefore, he was not eligible for section 4 support. He cannot find a solicitor to make a stateless application, so he is really stuck. He has literally spent the last 10 years homeless and destitute in the UK, having pursued every legal avenue. So there are some real practical barriers with challenges to returning people from particular countries that have no embassies in the UK or those with no viable route of return or other practical challenges with documenting or proving their nationality. Where people have proved that they have done as much as they possibly can to effect their own voluntary departure and there are some obstacles in their way, absolutely that needs to be considered.

Q 275

Sarah Champion: The Bill allows extension of support where there is a genuine obstacle, so how do you think genuine obstacles should be defined in the Bill?

Andrew Hewett:  We can provide some examples, but I think it would be more useful for the Home Office to consult on what the genuine obstacles should be and define them. At the moment, genuine obstacle is not really defined anywhere, so it is open to interpretation and we see some cases approved, but others are refused because they have not met that threshold. We need further clarification, but certainly where people have tried to pursue voluntary return and there is a bureaucratic or embassy issue, that is one credible example. There are others and we can come back to you with those, but that is the one that springs to mind.

Sarah Champion: That would be helpful.

Karl Pike:  There is a list of countries where assisted voluntary return is not possible, which I imagine you have seen. It is fairly extensive—there are quite a few countries on it. That would be a good place to start for the people who should definitely get support. There is also a common problem that Andy knows quite a lot about, which is embassies that will not provide travel documents to a person on the basis that they no longer have original ID. Ethiopia is one.

Andrew Hewett:  If you are an Eritrean national and the Home Office contests that you are from Eritrea—perhaps it says that you are from Ethiopia—you would be expected to attend both the Eritrean and Ethiopian embassies and almost go through the process of applying for a passport. Then the Home Office would want to see written confirmation from that embassy as to why it cannot issue you with a passport.
Practically, you could make an appointment at the embassy, go down there and go through the process, but neither of those embassies currently provides any written confirmation. So some of those people are in positions where they have to take an independent witness with them and then that person provides a witness statement to say, “Yes, the person did attend. This is what happened at the embassy” because there is no viable way of getting that confirmation from the embassy. The Home Office does not commonly accept those witness statements. These people are in an incredibly difficult situation. They have done everything humanly possible and followed every instruction, but there is some other barrier preventing them from meeting that very high threshold.

Q 276

Sarah Champion: So, for clarity, you think that that needs defining either in guidance or in the Bill?

Andrew Hewett:  Absolutely, it needs crystal clear clarification and definition.

Karl Pike:  We would like “genuine obstacle” to be defined in the legislation rather than allowing it to be subject to the regulations after the Bill has been voted on.

Q 277

Rebecca Harris: I want to ask you the question that I missed the opportunity to ask this morning. We have a lot of problems with our immigration service—it sounded terrible at some stages this morning—and I wondered whether you had any relative knowledge of immigration procedures and enforcement in other countries. How do we compare with some of our European partners?

Peter Grady:  Which aspect of immigration and enforcement procedures?

Rebecca Harris: Poor decision making, slow decision making, labyrinthine—does anyone know of an exemplar European nation that does things well?

Karl Pike:  There are so many different parts of it. To be fair to the Home Office, certainly the speed of decision making is potentially better than in some European countries. France is an obvious example. People often say that countries such as Sweden have better processes of return and support for asylum seekers, particularly for assisted voluntary return. It is a bit of a mixed bag.

Peter Grady:  I agree. To credit the Home Office as well, here—from UNHCR’s perspective at least—the quality of asylum policy is generally of a high standard. As Karl has mentioned, it is certainly a mixed bag when looking at other national asylum systems—whether of pros or cons.
To give just one example, credibility assessment is something we have worked on with a number of states. It is absolutely fundamental to asylum decision making. There are positive aspects of how it is conducted here, in terms of some of the infrastructure and policy that I mentioned before, but there are still issues for us and we need to work with the Home Office to develop training and strengthen decision making in the area. It is not unique to the UK—credibility assessment is, across the board, in a number of different countries, a challenging area for asylum decision making. So it is a mixed bag and it is hard to pull out one state and say, “This is the perfect state for asylum decision making.”

Q 278

Mims Davies: Earlier today, we heard that cases are getting more complex—the rules are more complex. Does that really just affect the people who are caught up in the system having more complex issues? You have described people unable to get paperwork, because they are caught up in the politics between countries.

Karl Pike:  Those are not new issues. Obviously, potentially we are going through a unique period in the movement of people, so the numbers of decisions that the Home Office is having to make are gradually increasing. It is not like the level of the early noughties, but it is certainly increasing. In a lot of these countries, sometimes the systems that they have clash with the systems that we have, and that seems to cause the Home Office difficulties.
I will just give you an example about a Syrian national which someone told me about a couple of days ago. It is a family reunion case, and they were trying to bring a child over. The Home Office wanted a birth certificate; the family did not have a birth certificate, so they had to go to a local civil organisation in Syria to get a new one, but the way in which they issue those in Syria means that they date them from the date of issuance, so the Home Office said it must be bogus, because it was dated 2015. Silly little cultural things such as that often get in the way, and that is what we mean by complexity, because that is just one example of one person from one country, and there are hundreds.

Q 279

Mims Davies: We heard earlier on from the director of Migrants’ Rights Network—I hope I quote him correctly. We talked about complexity and potential abuses in the system. He said that there are flaws with the system and people want to exploit that. Is it your experience that people are trying to exploit this lack of knowledge between countries and the complexity of laws and nations? Or is it really, as you say, that there is a significant change in the way in which people are living or trying to group together and that countries are trying to catch up with that?

Karl Pike:  The only thing that I would say to that is, from my experience of meeting people in the system, it is not fun. It is an incredibly difficult experience to go through and being destitute is not fun, and it is a problem that is getting worse. I have not personally encountered anyone in the course of our work, or in previous work, who was obviously gaming the system.

Andrew Hewett:  Operationally, we support more than 14,000 people a year through 56 towns and cities in the UK, offering information and support to asylum seekers and refugees. The vast majority do not exhibit behaviour that would lead us to be concerned that they were exploiting the system. They present with genuine needs, and there are real issues. If the cases are becoming more complex, it is possibly because conflict is becoming more complex. We are moving away from state declaring war on state to a much more complicated, multifaceted situation involving different factors and different factions within regions. It becomes much more difficult for asylum seekers to prove who is persecuting them, where they are being persecuted and whether or not they could be safely returned to a region of their country, because the situation is so complex and so rapidly changing. We are perhaps seeing an increase in the complexity of cases, but it is being driven by what is happening on the ground and it reflects the nature of those conflicts.

Q 280

Mims Davies: In terms of the Home Office, we have heard two different things. One is that it is catching up and doing quite a good job where it is able to make the right decisions with the right paperwork, and that things are speeding up. The other was a criticism this morning about templating. There was, perhaps, a perception that situations in certain countries were being stamped on other individuals from that country to make decisions easier. What do you think is the reality of the situation?

Andrew Hewett:  My understanding is that the Home Office still looks at every case on a case-by-case basis. It looks at the evidence that that case presents, and it makes a decision based on that evidence. I echo Peter’s remarks. The Home Office has made great improvements in clearing the backlog of cases that it has historically been dealing with and making more effective decisions more quickly. The big challenge for us is what happens to people at the end of the asylum process, particularly if their cases are refused. There is a challenge to them returning to their home country, because the current legislation means that they are commonly left destitute and homeless. That leaves them with little option other than to go underground, because there is no official means for them to support themselves.

Karl Pike:  The decision making goes directly to the appeals issue in the Bill, particularly asylum support appeals. If you look at the stats, there is bad decision making. Well over 60% of cases for asylum support are granted on appeal, or the Home Office changes its decision on the way to appeal.

Q 281

Mims Davies: But is that because more evidence comes to light, or is it because you are saying that there is bad decision making?

Andrew Hewett:  We have plenty of examples where somebody applies for asylum support and their application is refused because the Home Office does not believe that they are destitute. What tends to happen is that that person will approach a charity and ask them to write a letter of support to say that, yes, they have seen this person and they can confirm that they are street homeless or destitute. That letter is normally enough to win the appeal. It does not make any sense; if that letter was available earlier on, the case might not have had to go to appeal. There is an awful lot of time and resources wasted in those cases. I urge the Home Office to undertake a deep-dive assessment of the cases that have gone to an asylum support tribunal and that have been overturned on appeal, and to look at the reasons why. Is there any opportunity to change or amend policy to prevent more similar cases from going to appeal? If 60% of cases are being overturned, or are being withdrawn by the Home Office, we cannot credibly sit here today and tell you the reasons why that may be, but it seems as though work has to be undertaken to enable us to understand that.

Q 282

Mims Davies: In that case, if this is a complex situation and is getting more complex, and people may or may not end up destitute, are you as an organisation making it clear to people that once they get into the process, they could end up on the wrong side of it? That is, if they can go home—if there are reasons why they should not be here—should there be some onus on all the groups supporting that situation to say, “This is not as easy as you think, and it may end up causing more harm to you and your family than good?” Can you explain that at that point?

Andrew Hewett:  Absolutely. From our perspective, we do a great degree of what we call parallel planning. When we meet people who are in the asylum process, we work with them to ensure that they understand what could happen to them if they get a positive decision on their case, and what could happen to them if they get a negative decision. It becomes very hard for us to continue to engage with people after they get a negative decision if the policy makes them homeless and destitute. Ideally, we would want some time to go through it with them, because we may have built up an element of trust. We could perhaps do more to explain some of the difficult choices that people have, but it becomes increasingly difficult if a person becomes homeless. Maybe they have a friend who can put them up somewhere in a different town or city, and they end up sofa surfing. We tend to lose contact with them—the Home Office certainly loses contact with them—and that cannot be in anybody’s interest.

Q 283

Mims Davies: But we heard from some organisations yesterday that sometimes the first conversation about the fact that it can go wrong happens after it has gone wrong. That is why I am asking the question about such a good organisation as yours—to ensure that the whole round is explained to people.

Andrew Hewett:  I can absolutely confirm that that is our position. I also believe that that is the position of most organisations in the sector.

Q 284

Byron Davies: I have sat here for two days listening to people say that so many things are wrong with the system as it is at the moment, some of them picking faults with the Bill. I understand that UNHCR, for example, thinks that discontinuing support is unlikely to encourage people to go home. I do not know whether the panel shares that view. If you can justify that, I would like to hear your comments. Secondly, what therefore is the panacea for this?

Peter Grady:  Sorry, what was the second part of that question?

Byron Davies: What is the answer to this? What is the solution?

Peter Grady:  That might be a bit more difficult. Jumping to the first question, on whether the proposed changes will meet their objective, it was noted in our evidence that we had concerns whether removing support would meet the objective of encouraging return, or disincentivising staying, particularly for families of refused asylum seekers. I know that that has been discussed in some detail in this Committee, for example the section 9 pilot that was undertaken, so I will not go into that, but it is also UNHCR’s own experience, in exchanges and general discussions with colleagues and in some of the studies that we have conducted in the past.
To go back to some of the work that we have done on alternatives to detention, we have also looked at some of the drivers for compliance and issues surrounding absconding. There was a study, to go back a bit to 2006, in which that issue came up.

Q 285

Byron Davies: Where was this?

Peter Grady:  It was a global study conducted by Ophelia Field for UNHCR. It looked at a range of countries, but in that context, it was the Netherlands, which had introduced a measure to withdraw support after 28 days. It was observed that in that context, people would go underground immediately before the 28 days ended. It was not encouraging contact with the authorities, which undermined their efforts to return those people.

Karl Pike:  I think we would agree that withdrawing support in the way proposed would not lead to people leaving. I will not go over the previous pilot, but the evidence from that is quite clear. On solutions, we are looking to propose some and work with the Government. For instance, if you lengthened the grace period beyond 28 days for families, it might allow people longer to consider their options—

Q 286

Byron Davies: Or to disappear.

Karl Pike:  Well, when is it more likely that someone is going to disappear—if they are supported for longer so that they can talk about what they are going to do, or if support is completely withdrawn? The evidence from the last pilot was that more people absconded.

Peter Grady:  May I add something, Chair?

Peter Bone: May I just say that we are going to run out of time and Members are not going to be able to ask their questions? But carry on.

Peter Grady:  Very briefly, in terms of solutions it is worth looking at the family returns process. As far as we have observed, as least, it is an effective way of engaging with those at the return end of the spectrum. It has been seen to be successful, and increasingly so over the years. From the statistics I have looked at, more recently, at least, in 2012 to 2014 we had 76% of people leaving without an ensured return, up from 50% from the period of 2011 to 2012. It is worth considering.

Q 287

Rebecca Harris: On that point, if support were withdrawn only if people refused to engage and they were therefore encouraged to continue to engage, would you support that? Would you support a policy in which people are ensured continued financial support provided they are engaging?

Peter Grady:  Yes, I would think so. Obviously we would need to look at the details, but at least from what we have seen it is a core element that there is continued engagement with authorities. That can be undermined if you withdraw support, because they then look elsewhere for it.

Q 288

Anne McLaughlin: We will be looking at amendments in the next couple of weeks, and you have all of us sitting in front of you now. If you could be granted one wish for an amendment, what is the primary thing you would say we should amend in the Bill? You never know, it might happen.

Peter Bone: It is one wish.

Karl Pike:  Appeals should be allowed for section 95A. In cases where it is refused, we should have the right to appeal. The appeal success rate is so high at the moment that not having it is clearly going to hide very bad decision making, and those people will come to us because they will not have food or clothing.

Andrew Hewett:  I am going to take my wish, as well, so we have two as the British Red Cross. For me, it is the grace period. If you really want to engage people in some of the difficult and complex decisions you might have to make, people will need to be fed and have a roof over their heads while they are considering those. It is very difficult to do all that within 28 days so we will be supporting a move towards a longer grace period of 90 days, to enable those discussions and consultations, and explore and exhaust all possible avenues during that time.

Peter Grady:  If I had my one wish, to step away from this issue—although I would argue that it is within the scope of the Bill—it would be for the introduction of a time limit on detention. There are detention provisions there. We see that as being an area where it would help to ensure compliance with what UNHCR views as being international standards relating to detention. That is something we would strongly welcome.

Q 289

Keir Starmer: I will try to do this in one question. I want to draw together some of the examples you have given to make sure that I have understood the evidence. This is about the appeals for support. Let us say you have a case where there is a genuine obstacle to removal—for example, an Eritrean person who, for one reason or another, cannot get the right document to put before the Home Office. They are considered not to be destitute when they are, so the decision is made that they are not going to be given support. They then come to see you and you, the charity, provide them with a letter, so they have something that is almost certain to win on appeal, and they will at least get their support. If this Bill goes through, they are exactly the kind of person who will be stuck with a bad decision and no support, notwithstanding the fact that they are destitute and have a genuine obstacle to removal. It is simply tough on them.

Karl Pike:  Yes. It might help you to know that Eritreans are the largest single group of destitute people this year.

Q 290

Keir Starmer: But it is just tough on them. We made the wrong decision, and though they have a piece of paper that means they would win on appeal, it is just tough. That is the effect of the Bill.

Karl Pike:  Yes.

Andrew Hewett:  They will be made homeless and destitute. That makes it even more difficult if they want to progress to a voluntary return programme.

Q 291

Kelly Tolhurst: You mentioned that you think the removal of support will drive people underground. Can you explain to me what you regard to be underground and how that works?

Karl Pike:  From the pilot, people absconded. I do not know whether the Home Office followed it up with any further research as to where they had gone, but people often assume it means they can end up working illegally somewhere and potentially being quite badly exploited. This Bill creates an offence of illegal working as well. If all the provisions are the same, some people might end up absconding and end up in prison for illegal working six months later.

Q 292

Kelly Tolhurst: So having that description and taking into consideration the other parts of the Bill that focus on illegal working, do you think that that measure might aid individuals being able to continue to engage, rather than being driven underground because of the threat from the other parts of the Bill?

Karl Pike:  I do not know. It is hypothetical.

Peter Bone: Order. I am so sorry; we have run out of time for the Committee to ask questions. Can I suggest to the two organisations that if they want to put anything in writing to the Committee—anything you do not think we have got round to discussing—feel free to do so. Thank you for coming.

Examination of Witnesses

Rachel Robinson, Keith Ashcroft, Rebecca Hilsenrath, Steve Symonds and Saira Grant gave evidence.

Q 293

Peter Bone: We will now hear oral evidence from the Joint Council for the Welfare of Immigrants, Amnesty International, the Equality and Human Rights Commission, and Liberty—I hope. Welcome, everyone. I will ask you to introduce yourselves formally for the record, and I warn you that the Minister is allowed to ask questions at this session, which he enjoys enormously. Thank you, witnesses. Please introduce yourselves formally.

Rachel Robinson:  I am Rachel Robinson from Liberty.

Keith Ashcroft:  Keith Ashcroft, lawyer from the Equality and Human Rights Commission.

Rebecca Hilsenrath:  Rebecca Hilsenrath from the Equality and Human Rights Commission.

Steve Symonds:  Steve Symonds from Amnesty International UK.

Saira Grant:  I am Saira Grant, chief executive of the Joint Council for the Welfare of Immigrants.

Peter Bone: Thank you. Mr Starmer will start.

Q 294

Keir Starmer: Thank you, panel, for coming to give evidence to us this afternoon. The Bill proposes to make changes to the support that is provided to individuals who have got to the end of the process for their asylum claims. It extends the changes to the appeals process in terms of removal first and appeal afterwards. It introduces an offence of illegal working that applies to employees and expands the enforcement powers of immigration officers. Can the panel tell us what they think the human rights and equalities implications of those major changes are?

Rachel Robinson:  In the broadest terms, Liberty is seriously concerned about the societal discriminatory impact of various proposals in the Bill, which bring immigration control in-country or increase in-country immigration control in terms of the rental sector and in terms of the creation of an offence of illegal working and the new offence of driving while an illegal immigrant. We are extremely concerned about the impact of the proposals on race relations and community cohesion. At the same time as these proposals are being introduced, elsewhere in the Bill, we see proposals that strip away access to appeal rights, that shift control over immigration bail from the judiciary to the Executive and that create a hostile environment, with serious implications for the most vulnerable people in our society.
At the same time, we also see the creation of an offence of illegal working, which is liable to push people into exploitative employment situations; the removal of mainstream asylum support from many families; proposals designed to freeze assets; and proposals that involve closure of bank accounts. There are serious human rights implications for the very most vulnerable people in society and discriminatory impacts together with removal of oversight.

Rebecca Hilsenrath:  The Equality and Human Rights Commission supports provisions that set out to tackle unlawful working, particularly in relation to the exploitation of those whose status is uncertain, but we do have concerns. We have reviewed the Bill as a whole and we have particular concerns about the proposed reforms in relation to measures to introduce eviction powers and the reform of appeal provisions for support for failed asylum seekers. We can come back in greater detail, but broadly speaking we do not believe that due consideration has been given to obligations under the UN convention on the rights of the child. We have concerns relating to article 6 in both cases and article 8. We also have an overriding concern about the equality impact assessments undertaken in relation to the Bill. We understand that they are still under way, but the failure to provide proper evidence about equality impact at this stage undermines the ability of parliamentarians to properly debate the provisions in the Bill.

Q 295

Keir Starmer: Is that just a timing question, or does it go beyond that?

Rebecca Hilsenrath:  We have not seen them, so it is very difficult to comment. My understanding is that what has been produced touches on financial implications but not equalities.

Q 296

Keir Starmer: Other panel members, what are the human rights and equality implications of these measures in particular?

Steve Symonds:  In brief, for the reasons just outlined and others you have heard in your evidence sessions, I think we would generally say that they increase the likelihood of human rights abuse and they reduce the safeguards accessible to people to try to remedy or safeguard themselves from those abuses.

Saira Grant:  I agree with that. I would add that the entire target of the Bill, as of the 2014 Act, is to create a hostile environment, purportedly for unlawful migrants, but, actually, what we are really concerned about and what we have already seen happening is that it targets all migrants: lawful migrants here and, indeed, citizens of this country.
Our concern is that there will be many abuses of human rights. Many people will be unlawfully targeted and discriminated against and the Bill provides no redress. That is completely lacking for those people who are unlawfully targeted by the provisions.

Keith Ashcroft:  Just to echo what Rebecca said, we have real concerns about the withdrawal of support for failed asylum seekers with children and also some concerns about the extension of the deport first, appeal later provisions, which, as you know, currently apply almost exclusively to foreign national ex-offenders. We have some questions about whether it is proportionate to extend the provisions to cover those who simply wish to appeal on human rights grounds against a refusal to enter or to remain.

Peter Bone: I will ask Mr Hoare to come in in a minute. I should have said at the beginning to the witnesses that we will finish at 4 pm, not 4.30 pm as you may have been told originally. We want to get through as many questions as possible.
The other thing is, when it gets to 4 pm, there will be bells ringing. It is not the fire alarm; we will have to go and vote. You will see us all rush off at that time, so please do not be offended by that.

Q 297

Simon Hoare: Ms Robinson, has Liberty ever welcomed an immigration Bill?

Rachel Robinson:  I am afraid that I have not been there long enough to give you an accurate analysis of that. What I can tell you is that we have seen the same failed approach tried and pushed in many immigration Bills, so inevitably we raise many of the same concerns. What we see in parallel is a failure time and time again to address problems in the Department that are identified time and time again in various reports.

Q 298

Simon Hoare: I think we will take that as a no.
Let me ask you another question; it may come out crudely, but it is not intended to be crudely phrased. A phrase you used in your answer to Sir Keir struck me: “members of our society”. That was a phrase that you used once or twice in your opening remarks. We are talking here about those who have failed a process—a fair process. That could be debated, but let us say for argument’s sake that it is a fair process. Therefore, by definition, one can presume that the people for whom permission has been refused have not welcomed that decision, but in point of fact and without being rude about it they are not “members of our society”; they are members of the societies of other countries. Where does our duty end in those circumstances?

Rachel Robinson:  Liberty would certainly argue that while people remain in this country, they should be treated with the basics of dignity and respect; they should have the human rights framework applied to them. That does not mean that enforcement action should not be taken against them—this is not an argument about not having a functioning immigration system. This is how we treat people who remain in our country. We would argue that the provisions set out in this Bill will lead to an increase in destitution, including among children, because this Bill specifically targets children and families with young children. In addition to provisions that cut asylum support for families with young children, we now see the removal of mainstream support for those individuals, and that is deeply worrying.

Q 299

Simon Hoare: And that assertion can be evidentially substantiated?

Rachel Robinson:  I am sorry—what assertion?

Q 300

Simon Hoare: The assertion that you have just given us.

Rachel Robinson:  That this is specifically targeted at children? Well, the provisions in the Bill would lead to the automatic removal of section 95 support for families with minor children, who are currently covered by an exception to the current scheme, so yes, it is targeted at children.

Q 301

Simon Hoare: Chair, may I just ask a general question? If all members of the panel wish to answer it, that is entirely up to them. I am certainly taking Ms McLaughlin’s line, which I thought slightly pinched my earlier line of questioning this morning. In the ideal world and you have a blank sheet of paper in front of you, would you prefer to see an amnesty for those who are here today illegally and effectively start from scratch, or would you just prefer to see an open borders process and let the market decide how full the country can and cannot be?

Rachel Robinson:  This is entirely outside the remit of Liberty’s work. Liberty comments on human rights and human rights protections, and whether they are available to people in this country. We do not take a view on how immigration works; we do not take a view on immigration more broadly than that.

Simon Hoare: Okay. Maybe somebody else on the panel has an answer.

Peter Bone: Shall we just go down the panel? There are five people; four organisations. Perhaps one from each organisation.

Rebecca Hilsenrath:  I certainly agree that that is not within my remit to comment on, but I would say, and I started off by saying—

Simon Hoare: Your personal view.

Rebecca Hilsenrath:  Well, I started off by saying that we support the idea of tackling illegal working and particularly protecting those who are exploited because of their status. But to consider, for example, the question of those who have failed in their application for asylum, I do not think that the commission or I would argue for one moment that they should not leave the country. We are simply debating the period between the failure of the application and the exit.
What the Bill says is that in order to be able to claim for support when you have children and are without the right of appeal, you have to be both destitute and able to fulfil a requirement, where the burden of proof is on you, to show that there is a genuine obstacle to your leaving the country. That suggests that being genuinely destitute is not sufficient, but in fact the European convention on human rights says that being destitute ought to be sufficient. The convention on the rights of the child also requires the Government to put the rights of the child at the heart of their policy making. We are looking simply at that window of destitution between failure in the application to remain and exit from the country. We do not debate in the slightest that the failure should implemented by removal.

Steve Symonds:  Perhaps I can comment on the first question that you asked. It is important that the Committee understands that it is not just people who have been failed through a process that the Bill will have an impact on. There are children born in this country without any status. There are children who come here when they are very young and remain in this country without any status, many of whom are entitled to British citizenship but do not have access to be able to get it. There are people who have leave quite legitimately and wrongly have their leave curtailed, and who, because of the previous Act, have had their appeal rights withdrawn—no administrative review remedy was set up when those rights were withdrawn. Also, as Saira mentioned, there are British citizens who may be impacted because their children or their spouses are removed from the country, or cannot be reunited with them. There are British citizens who do not have passports and are not able to satisfy a landlord that they are, indeed, entitled to be here and therefore entitled to rent.
There are many aspects of the Bill that have an impact on people who should not be going through any process, those who may be entitled to a process but have had it curtailed or wrongly ended, or those who would be at the start of any process, if it was available for them, at the very time that the Bill will start to impact them adversely, potentially with human rights consequences.

Saira Grant:  Steve has given a few examples that I was going to give. That is the important point. You said at the start that these people are not members of our society, they are at the end of the process, they have failed, but as Steve has just outlined to you, there is a real misunderstanding about the people we are talking about. So many are children who have grown up here, who know no other country but who do not have regularised status, through no fault of their own. So many are family members.
The Office of the Children’s Commissioner recently did an in-depth study on the family migration rules and their impact. It discovered that many people without lawful status are the mother of a British child or the wife of a British husband. We are not talking about those in the backs of lorries, who have failed the process and therefore should now be demonised and exploited. Many measures of this Bill are targeting and creating a hostile environment that is unnecessary and will have so many repercussions on regularised black and minority ethnic community members and British citizens, and it will have an impact on our social cohesion.

Q 302

Simon Hoare: Can I come back very briefly? I was interested in what you were saying because you made that point in an earlier submission. You are right to be worried about the social cohesion perspective. I suppose I look at it from the other end of the telescope. Do you agree that if everybody in society, irrespective of colour or creed—I put that in inverted commas—had safe knowledge that their neighbours and the people who lived in their communities were all bona fide, were all legitimate, were all citizens, or had right to remain in this country, it would ease the growing tension in many communities? That, in fact, of itself eases what in many communities is a growing tension—a tension between the settled, legal immigrant community and the illegal immigrant community. In my judgment, that is causing quite a lot of tensions in towns and cities across the country.

Saira Grant:  You raise a very interesting and valid point, but I do not think that the answer is to create more suspicion and mistrust among members of civil society. It goes back to border control at the start; it is the Home Office’s responsibility, not that of civil society to be policing each other’s immigration status. We need to go back to the beginning. If the Home Office was making correct decisions, issuing correct visas and making it easier for people to lawfully go through the process, we would see a reduction in the numbers of those who are now irregularly here.

Q 303

Sarah Champion: Ms Grant, have you or your organisation had time to assess the west midlands pilot on landlords? Are you able to come up with some recommendations of how the pilot could be strengthened or any weaknesses in the Bill?

Saira Grant:  Sure. You will be aware—I hope that Members are aware—that our organisation did an independent study of its own as well. We have sent copies of the report around. I have had a chance to go through it, although not in as much detail I would have liked, because it only came out on Tuesday, but looking at the evidence that they provided in the evaluation, it matches and mirrors a lot of the claims we have been making.
The first point to make is that the terms of reference are very different from our evaluation, because the emphasis is not on tenants; it is about landlords and the understanding that landlords have. Discrimination that we found has been alluded to—cases through mystery shoppers of indirect or potential discrimination—but that has not been the focus, and the tenants who are part of the survey are again a very low number, mainly students, so a very different group of people.
Something that really strikes me is to do with whether the reason behind these provisions is to ensure that those who do not have status do not stay in the UK and are encouraged to leave. If enforcement is the aim, look at what the results show: the claim is that 109 people have been “caught”, if you like, as a result of the right to rent checks, but break that down and at best you are looking at 15 people who directly came through the right to rent checks inquiry line and who came to the Home Office’s attention. That in itself is a very interesting statistic, because, of the 109 people, 94 actually had status and the right to remain, but the inquiry was made because landlords could not understand the complexity of immigration status. From the 15, it is really interesting. That is direct, but then we have a breakdown of the 109: 25 people had barriers to removal, 15 were progressing family cases, nine were granted leave by the Home Office and a further four had judicial reviews.
Whichever way you look at it, all of those who have outstanding legal cases need to reside somewhere. Because of the way we have changed our immigration rules, people might not have section 3C leave, which continues their leave, but if they have outstanding legal cases and therefore a barrier to removal, what is supposed to happen to them? Are they now just supposed to be destitute?
Going through their evidence, I would say that there needs to be a longer evaluation period; it needs to be not over the winter period, when no one really moves tenancies; and it needs to look at the impact on tenants, not just landlords. How can we possibly have a roll-out announced on the same day as the publication of this evaluation?

Peter Bone: Rebecca Harris wants to come in on this point.

Q 304

Rebecca Harris: It is not particularly on this point. Within the provision of the Bill, do you think that there is sufficient resource and support for landlords to be able to make the assessment?

Saira Grant:  No, quite the opposite; the Bill is now going to criminalise landlords, which will exacerbate the sense of “I don’t want to rent to anyone who looks or appears different.” Landlords have said that the code is hard to understand. I understand that the code is being revised—I see the Minister shaking his head, but I am looking at the evaluation and quoting from it, Minister. So no, there is not any further provision, but what we do have is a situation that will exacerbate discrimination, and that is not being tackled at all in the Bill. And I am not quite certain why the haste. Why are we rushing to strengthen the provisions before the provisions of the 2014 Act have bedded down and we have even looked at the impact properly?

Q 305

Sarah Champion: My final question is about immigration officers. Their remit is being extended, so that they will become more police-like in their areas and in their reach. Do you think that there is enough oversight and independent scrutiny of immigration officers in the Bill or existing legislation to ensure that they act responsibly?

Saira Grant:  No, I do not and that is a real worry. So many enhanced powers are given—arrest without warrant, especially the driving licence provisions, no warrant needed to enter premises and to search people—and it was interesting that in your earlier evidence session when the police were talking about it. These powers are not just given to the police, but given to immigration officers and to anyone designated by the Secretary of State. There is no regulatory framework for immigration officers that I can see. It is extremely concerning that ever increasing powers are given to immigration officers, with no checks in place to prevent any kind of abuse of those powers.

Q 306

Sarah Champion: Do the rest of the panel members share those concerns?

Steve Symonds:  I do. I would add this: I have followed immigration legislation over many years in different capacities, and I cannot think of a Bill over the last 15 to 20 years that has not extended the powers of immigration officers. I cannot think of a time when that has not been questioned in Parliament, and when the answer has not been that there will be better oversight, training and supervision this time. Actually, I cannot think of a time when it has resulted in a more efficient and effective system, let alone fewer concerns about instances of abuse of those powers.
It strikes me as inappropriate to be constantly expanding powers when, as has been referred to in an earlier session—the first session you had this morning—even the inspectorates themselves constantly refer to lack of management records of how the powers are used, inconsistencies in how they are used and inconsistencies about the guidance to officers about how they should be using the powers. We should stop giving more powers and concentrate on the ones that have been given now, at a minimum, and get those right before thinking ahead to expanding the range of powers given to officers and the expectations on those officers, who are much pressed and who no doubt find it difficult, given the range of legislation and guidance pressed on them. Sort out what they have got now before thinking of moving ahead. Oversight is not going to be the answer. I am not criticising oversight, by the way—I am all for it—but it will not provide the answer.

Rachel Robinson:  Can I come in on the point about enforcement powers? I echo many of the points made by other speakers, but I add the very serious nature of the problems with the use of enforcement powers identified by the Independent Chief Inspector of Borders and Immigration. A report covering an inspection period ending in 2013 found that in terms of, for example, the power to enter business premises without a search warrant, officers in 59% of cases lacked the required justification to exercise that power. In a further 12% of cases, there was not sufficient information to determine whether justification was there, so in only 29% of cases was the power being used properly. Yet, in the Bill, we see a massive extension in how intelligence is used by immigration officers.
We have had similar concerns from the Independent Chief Inspector of Borders and Immigration about the approach to so-called intelligence. One example given in a recent report involved a raid on a fast food restaurant. The intelligence for that raid was that previous raids on fast food restaurants had uncovered irregular workers. That is not intelligence; that is a generalisation and a stereotype. We have serious concerns about how the powers are being used, and we urge the Government to consider looking again at those powers, how they are being used and whether there are ways to make them more effective, safer and more accurate, rather than giving immigration officers a whole range of new powers.

Q 307

Rebecca Harris: You might want to reassure our witnesses that we had a housing officer as witness who thought that giving housing officers the responsibility to ask anyone to verify who they were might reduce problems with prejudice and so on. My question to all of you, with your expert knowledge of this area, is what measures you think we should be introducing to encourage people with no right to remain in this country to leave, or ensure that they do so when they refuse. What would be your solutions to that problem, if this is not the answer?

Rachel Robinson:  What we see in the Bill is a shifting of responsibility from the Home Office to private citizens, when what we should be seeing is an improvement in processes within the Home Office. I think that the Committee has had ample evidence that the provisions in the Bill are liable to undermine enforcement of the immigration rules by making it more likely that people will abscond. The Committee has heard ample evidence on the provisions on asylum support.
We would say that the solution is not to foist immigration powers on members of the community with no training or expertise and expect them to carry out the functions that the Home Office has failed to carry out effectively itself. The solution is for the Home Office to do its job better.

Rebecca Hilsenrath:  We start by wishing that an equality impact assessment had been produced; it might have helped to look through the draft provisions with a closer eye on equality impact. In terms of general proportionality, you could take the same approaches and consider whether, in fact, the same measures could be looked at through the lens of greater compliance with human rights legislation. If we look, for example, at the provisions giving private landlords eviction powers where tenants have been found to be disqualified from renting, we do not really understand why that process cannot involve a review by the court instead of being, as it is at the moment, enforceable as a court order.

Q 308

Rebecca Harris: Do you think your alternative would help to encourage people who have no right to be here to leave the country?

Rebecca Hilsenrath:  I do not understand why it would make them less likely to leave the country. We do not understand why under clause 14, in mixed tenancies where some tenants are lawful and some unlawful, the court cannot consider transferring the tenancy to the lawful tenant. We do not understand why there is not an obligation on the court to do so where that would be reasonable. You could look again at all these policies through the lens of proportionality. A proper impact assessment would have helped the Government to do that.

Q 309

Rebecca Harris: But you have not given us any measures that you think would be more successful in getting people who have no right to be in this country to leave. I am looking for your solutions to the problem. You are telling me what you do not like about the legislation, but I would like your solution; what would better help people who have no right to be in this country to leave.

Rebecca Hilsenrath:  I do not think that it is within our remit to suggest more effective solutions. I was simply suggesting that if these are—

Peter Bone: Can I butt in? I am really sorry, but we have got about five Members who want to get in, with less time than we expected. If you have not got a remit to talk about it, perhaps we should move on. I guess that no one else on the panel is going to answer that question, are they? No.

Q 310

Craig Whittaker: I want to challenge Ms Grant, but first I will declare an interest, as I did on Tuesday. You have said that it is not right that landlords have to deal with the complexities of people’s immigration status. In fact, we had Mr Smith on Tuesday from the Residential Landlords Association, who said that the sector was made up of amateurs and accidental landlords. Let me just ask you what is so complex about taking an ID, which the majority take anyway. Do you not think it might enhance the situation for landlords along the way?

Saira Grant:  I did not say that it was not right; I said that it was difficult. I will explain, because that is the second part of your question. Taking an ID is not difficult. If you have a passport, it is very easy. You can show your passport, and we do show passports in many situations, including when getting tenancy agreements. The complexities arise when somebody’s immigration status is not clear cut and they do not have a British passport. I was pointing to the evidence that backs that. In the Home Office’s own evaluation, the landlords’ checking service was contacted 109 times, because landlords said, “We do not understand what we are seeing. We do not understand this document, this biometric card or this historic stamp in this passport.” Out of those 109 inquiries, 94 people had the right to remain. That demonstrates that it is not me—

Q 311

Craig Whittaker: May I just point out to you that that is no different from anyone else in this country who wants to rent any property? I had the same situation myself only three weeks ago. First, living in Yorkshire, I had to be in London on a particular day, otherwise the property went. Secondly, I had to have all the relevant checks in place. If I did not, the property was given to somebody else. How is that discriminating against somebody, when that situation is already in place?

Saira Grant:  That is exactly the point. If you do not have your documents to hand—say you are one of the 17% of British citizens who does not own a British passport, so you cannot show that—what happens is that there will be somebody else ahead of you in that queue, but that is not the discrimination I am talking about. I am talking about the difficulty landlords are having in assessing immigration status, as the evaluation demonstrates. It is not me saying that; it is what the evaluation demonstrates. The discrimination I am talking about and which we found was when landlords said to us—almost a third of landlords who responded to our survey said this—“This is really worrying for us, £3,000 is a hefty civil penalty. We do not really want to rent to anybody who sounds foreign, looks foreign or has a foreign accent. It is just not worth our while.” That is leading to discrimination. That is the problem. The scheme is set up in such a way that you do not need to be a racist landlord; you just need to be a cautious one to say, “If I have a choice, who am I going to rent to? Somebody I am not sure about or somebody who has a British passport.”

Q 312

Craig Whittaker: Trust me, as a landlord, you have to be cautious anyway.

Saira Grant:  I am sure you do.

Q 313

Mims Davies: I just wanted to pick up the line about entitlement, which is running through the conversation this afternoon—people feeling that they will get to a point at which they are entitled to be here. This question is for Ms Grant: does your organisation explain to people that there may be a point at which they feel they are entitled to be here, but they will not be? Do you go through the process of what could happen to them? We heard from the Red Cross earlier that it does that, but some organisations do not and it is adding complexity to complex cases.

Saira Grant:  Absolutely. We run an irregular migrants helpline to give legal advice. The best advice we can often give is to say to somebody, “You have to leave the UK.” We spell out their entitlements, their rights and what the process is, and then we refer them to the voluntary returns scheme, to the Red Cross or to whichever organisation is appropriate. Absolutely, it is in nobody’s interest to have people who should not be here remaining here, and it is not in their interest either. The destitution we see is heartbreaking, but if they have come to the end of the legal process, we have to give them fair advice. We are a legal organisation.

Q 314

Mims Davies: So fairness on all sides. That is very helpful. This question is for Ms Robinson: we have heard this week from some sectors, such as hospitality, that in some areas, exploitation of illegal migrants does happen. Do you think that the Bill unfairly shines a light on exploitation of workers? I am confused about why you do not see that there are some areas where it is easier to exploit people than others.

Rachel Robinson:  Are you asking whether some areas of the Bill—

Q 315

Mims Davies: You were saying that people do a “finger in the air” job and just turn up at restaurants, for example. However, we heard evidence on Tuesday that certain sectors, such as the building trade or hospitality, were more likely, in some cases—with bad employers—to find workers and exploit them. This Bill provides an opportunity to protect people, would you not agree?

Rachel Robinson:  Parts of the Bill are a movement in the right direction, such as the new director role, which is not something that we have briefed on, but other parts create cause for concern on this very issue. I am thinking in particular of the offence of illegal working. The Committee has already had lots of evidence, which we agree with, that this measure is likely to drive people underground and could strengthen the hand of rogue employers who have another sanction to hold over the head of employees. It could prevent victims of trafficking and exploitation from coming forward.

Q 316

Mims Davies: Finally, we heard this morning from the director of the Migrants’ Rights Network who said that there were flaws in the system that could be exploited. Are there any provisions in the Bill that you believe are the right ones in terms of not allowing people to be exploited?

Steve Symonds:  In general, I would say that the Bill fails on that account. Perhaps it comes back to the earlier question that I was shy to answer, and we then moved on. I think legislation is not the way forward to address the concern about trying to get through to people who have no entitlement to be here, who often find themselves in miserable circumstances, who are at risk of exploitation and who perhaps do need to make that decision and leave. The answer to that is going to be that you have to have a more consistent, efficient system that ensures people feel they have a fair hearing. That includes making sure they have access to proper advice—the sort of advice that Saira has mentioned—and it includes access to legal aid.
I used to provide immigration advice to people. One of the first things you would do would be to talk through their options, and, if they had none, explain that to them. That is how you start to turn this around. That is going to take time, and if we are starting with the illusion that we will ever get to a world where there is nobody here who has no entitlement to be here, and we are always going to be legislating on the idea that somehow we can by law create the environment where there is no one here who should not be here, we will never get to that solution.
So we need to come back to management and supervision of policies that need to be clear, consistent, simple and readily understood by those who exercise them and by those who advise upon them, so that people understand what is their true position, feel that they do go through a fair process and can make a sensible decision at the end of it.

Q 317

Mims Davies: Do you think Amnesty gets that messaging right in terms of explaining to people that there is a fair system, but they may not feel at the end of the process that they get a fair outcome? Are you as a group telling people all the bad stories, the good stories and the realities? In essence, no system will ever get it completely right and you have to highlight when we do get it right. Are you spending your whole time explaining when we get it wrong?

Steve Symonds:  I will say two things in relation to that. In relation to individuals, we do not provide any immigration advice at all. We are not regulated to do that, so we are not entitled to do so. We are not saying the sorts of things to individual people that JCWI through its advice work can do. In terms of the generality, we do point out the other side, perhaps not as much as some people would like, but we have to also accept and acknowledge that we see headlines in our newspapers regularly that we would feel are entirely critical and are not themselves balanced, so one of our jobs is clearly to ensure that there is some balance in the discussion. That means we have to more closely point the finger where things have gone wrong, and I think that it is perfectly appropriate and necessary for us to do so, and that is what we will do.

Q 318

Mims Davies: In terms of the view that the welfare group has, Ms Grant, do you think the same? Are you are able to tell the good and bad stories so that if people do come here they have a fair view that the system can be perceived to be kind to some people with a perceived entitlement and less kind to others? That could be down to what we heard earlier—because of the complexity of the cases. If you cannot get your documentation, it may seem that the system is unkind to you, but you may be caught up in a political issue locally rather than this being an unfair system.

Saira Grant:  Sure. Yes, we try to be as candid as we can, but it is very hard, when you have legislation, media talk and a political environment that is constantly talking about hostile environments, to say to people, “This is a welcoming country that is very fair.” That makes our job very difficult, especially so when people have made valid, legitimate applications and there are delays in getting those applications processed. They are in limbo in the meantime. The system has delays within it, and then there might be a wrongful decision, a bad decision, as you have heard before.

Q 319

Mims Davies: Would you say the system is better than it was five years ago in terms of being timely?

Saira Grant:  Decisions are faster, but the quality of decisions has not improved.

Q 320

Mims Davies: Is that because the cases are more complex?

Saira Grant:  No, because the culture really has not changed at the Home Office. I know it is making strides to change, but I can see from the appeal determinations the percentages are pretty much the same. Overall, 40% of appeals are successful. It was 44% two years ago. So there is a slight shift—these are tribunal figures—but overall it has not changed. Decision making is faster, but within the tribunal system delays have increased in terms of appeals being listed. We have appeals being listed a year from today, so there is a long wait for people and that limbo creates a lot of uncertainty and a lot of problems.

Peter Bone: I am afraid that brings us to the end of the time allocated to the Committee to ask questions. I thank the witnesses for coming and answering questions.

Ordered, That further consideration be now adjourned. —(Charlie Elphicke.)

Adjourned till Tuesday 27 October at half-past Nine o’clock.
Written evidence reported to the House
IB 09 London Chamber of Commerce and Industry
IB 10 British Medical Association
IB 11 Chief Superintendent David Snelling, Sutton Police